FIFA - Decisión disputa Tulimieri 29092023

REF. FPSD-11441

Decision of the Dispute Resolution Chamber passed on 29 September 2023 regarding an employment-related dispute concerning the player Kevin Tulimieri BY: Calum Beattie (Scotland)

CLAIMANT:

Kevin Tulimieri, Italy Represented by Carlo Mamo

RESPONDENT:

Birkirkara FC, Malta pg. 2

REF. FPSD-11441

I. Facts of the case

1. On 11 July 2022, the Italian player Kevin Tulimieri (hereinafter the Claimant or the Player) and the Maltese club Birkirkara FC (hereinafter the Respondent or the Club) concluded employment agreement (hereinafter the Employment Agreement), valid for one season.

2. In particular, in Clause 1 of the Employment Agreement, the Claimant and the Respondent

(jointly referred to as the Parties) agreed upon the following provision: “This contract shall be valid for one (1) football season and shall come into effect on the signing of this contract and terminate naturally at the end of season 2022/23 or after the last competitive match whichever comes first. Should the club qualify for European football the contract is automatically renewed for another season and will terminate naturally at the end of season 2023/24 or after the last competitive match whichever comes first.”

3. In accordance with TMS, the respective seasons run as follows: − Season 2022/2023: 09.06.2022 - 08.06.2023 − Season 2023/2024: 09.06.2023 - 08.06.2024

4. In Clause 2 of the Employment Agreement, the Parties agreed that the Claimant will be entitled to a gross monthly salary of EUR 2,455, payable at the end of the month.

5. In the same provision, the Parties agreed upon the following bonuses: “The Player is entitled to €7,000 if the team wins the BOV Premier League and a bonus of

€5,000 if the club qualifies for European football through a league position or winning the FA trophy. A bonus of €3,000 is to be paid should the player starts 15 matches. A bonus of €2,000 is to be paid should the player score seven league goals. Bonuses are to be paid once funds from UEFA are paid and the club obtains a valid license by not later than 30th December 2023.”

6. Furthermore, should the Employment Agreement be extended as per Clause 1, Clause 2 contained the following financial obligations upon the Respondent: “Should the contract be extended, in remuneration for his services the Club shall pay the player a gross monthly salary of €3,681 {Three thousand six hundred eighty one euro).

Payment is to be made at the end of each month. Such remuneration shall be paid by means of cheque or bank transfer. The Player is entitled to €5,000 if the team wins the BOV Premier League and a bonus of €3,000 if the club qualifies for European football through a league position or winning the FA trophy. The player will not be entitled to any other bonuses for the second year. Bonuses are to be paid once funds from UEFA are paid and the club obtains a valid license by not later than 30th December 2024. Above bonuses are due Net.”

7. During the season 2022/2023, the Claimant appeared in more than 15 matches. pg. 3

REF. FPSD-11441

8. Allegedly, as from May 2023, the Respondent started to default the payment obligations.

9. Allegedly, as from 19 June 2023, the Claimant was “informed by the Club that he was no longer in their plans for the rest of the season, that he was no longer part of the first team and had to train alone with the physical trainer of the Club. The player usually started doing the five (5), ten (10) minutes warming up with the first team and then trained with the physical trainer for the

rest of the session for approximately 7 weeks. During the last week of July when the physical trainer was not present the player trained with the rest of the team for 4 days until once again, he was told to train alone.“

10. On 13 and 20 July 2023, the Respondent participated in the UEFA Europa Conference

League.

11. On 3 August 2023, the Claimant was allegedly attacked by the Head Coach of the

Respondent.

12. On 4 August 2023, the Claimant sent a default notice to the Respondent, granting the latter 15-days to fully settle the salaries of May – July 2023.

13. In the same notice, the Claimant reported the above-mentioned incident and requested the Respondent to ensure that he could provide his services again and train with the team in a safe working environment. What is more, the Claimant asked to be reinstated with the team.

14. On 7 August 2023, the Respondent replied, inter alia, as follows: “(…) kindly note that first and foremost, Mr Tulimieri has been informed on numerous occasions that he is no longer part of the technical team’s plans and he was informed that he can freely search for employment with another football club. Nevertheless, Mr Tulimieri was reluctant to search for another club (…)”

15. The Respondent further rejected any physical attack by its head coach, yet pointed to an incident of the Claimant allegedly attacking the head coach. Due to this incident, the Respondent justified that “Mr Tulimieri is not part of the technical team’s plans, a tailormade training programme was offered to him to allow him to strengthen his performance.”

16. Finally, the Respondent informed the Claimant regarding a potential disciplinary proceeding.

17. Further correspondence was exchanged between the Parties, the Respondent insisting on its position and the Claimant repeatedly requesting the Respondent to remedy its alleged breaches of the contractual obligations. pg. 4

REF. FPSD-11441

18. On 18 August 2023, the Respondent paid two monthly salaries (May and June 2023) to the Claimant, leaving the July 2023 salary outstanding.

19. On 21 August 2023, the Claimant terminated the Employment Agreement.

20. On 13 September 2023, the Claimant signed a new employment agreement with the Maltese club Mosta F.C. valid until “the last competitive match of the 2023/24”.

21. In accordance with Clause 2.1.1, the Claimant is entitled to EUR 950 at the end of each month.

II. Proceedings before FIFA

22. On 21 August 2023, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. Position of the Claimant

23. The requests for relief of the Claimant were the following: “Establish that the Claimant terminated the contract with just cause on the 21st of August 2023.

The Claimant hereby respectfully requests the FIFA DRC to order the Respondent to pay the Claimant, in the bank account (Exhibit 11), the following amounts: a. EUR 3,681 as the Claimant’s due salary for July 2023, plus legal interest from 1st August 2023 until full payment. b. EUR 5,000 for the qualification during season 2022/23 to participate in a European competition, plus legal interest from the day when this claim has been filed until full settlement. c. EUR 3,000 for starting more than fifteen (15) matches during season 2022/23 plus legal interest from the day when this claim has been filed until full settlement. d. EUR 37,791 as compensation corresponding to the residual monthly salaries from the 1st of August 2023 till the 8th of June 2024, plus legal interest from this claim’s filing date until full settlement. e. EUR 22,086 as Additional Compensation in case the Claimant finds new employment, as

per art. 17(1)(ii) of the FIFA RSTP, plus legal interest from this claim’s filing date until full settlement.

24. The Claimant argued that he terminated the contract with just cause based on art. 14bis as well as art. 14 par. 2 of the Regulations.

25. In this respect, the Claimant was of the opinion that the Club breached its various obligations: (i) payment of salaries; (ii) letting the player to train on his own; (iii) as well as pg. 5

REF. FPSD-11441 failed to take the necessary steps to ensure trust towards the player (due to the noninvestigation of the alleged incidents with the head coach).

26. The Claimant argued that such behaviour is abusive and in bad faith, which is “ proven by the fact that the club was trying to take advantage of the weak position of the Claimant, who’s last received salary was the one of April 2023, was training alone and was verbally and physically abused by his coach with the intention to exert pressure on him to leave and find another club in the sole interest of the Respondent. Whilst the club didn’t allow the player to be part of the team and has been training alone for approximately seven (7) weeks, all of a sudden after they were notified on the 4th of August by the player representative, they expected him to be ready and attend for a friendly match on the 5th of August.”

b. Position of the Respondent

27. Despite being invited to do so, the Respondent failed to reply to the claim within the relevant time limit.

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

28. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as the Single Judge) analysed whether he was competent to deal with the case at hand.

In this respect, it took note that the present matter was presented to FIFA on

21 August 2023 and submitted for decision on 29 September 2023. Taking into account the wording of art. 34 of the March 2023 edition of the Procedural Rules Governing the Football Tribunal (hereinafter the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

29. Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players May 2023 edition), the Single Judge is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Italian player and a Maltese club.

30. Subsequently, the Single Judge analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (May 2023 edition) and considering that the present claim was lodged on 21 August 2023, the May 2023 edition of said regulations (hereinafter the Regulations) is applicable to the matter at hand as to the substance. pg. 6

REF. FPSD-11441

b. Burden of proof

31. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. Likewise, the Single Judge stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the parties, including without limitation the evidence generated by or within the Transfer Matching System (TMS).

c. Merits of the dispute

32. His competence and the applicable regulations having been established, the Single Judge

entered into the merits of the dispute. In this respect, the Single Judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the Single Judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand.

1. Main legal discussion and considerations

33. The foregoing having been established, the Single Judge moved to the substance of the matter, and took note of the fact that the Parties strongly dispute the justice of the early termination of the contract by the Claimant, based on the alleged non-payment of certain financial obligations by the Respondent as per the contract, in accordance with art. 14bis of the Regulations.

34. In this context, the Single Judge acknowledged that his task was to determine, based on the evidence presented by the Parties, whether the claimed amounts had in fact remained unpaid by the Respondent and, if so, whether the formal pre-requisites of art. 14bis of the Regulations had in fact been fulfilled.

35. The Single Judge then referred to the wording of art. 14bis par. 1 of the Regulations, in accordance with which, if a club unlawfully fails to pay a player at least two monthly salaries on their due dates, the player will be deemed to have a just cause to terminate his contract, provided that he has put the debtor club in default in writing and has granted a deadline of at least 15 days for the debtor club to fully comply with its financial obligation(s).

36. The Single Judge noted that the Claimant claims not having received his remuneration corresponding to three monthly salaries. Furthermore, the Single Judge noted that the Claimant has provided written evidence of having put the Respondent in default on 4 August 2023, i.e. at least 15 days before unilaterally terminating the contract on 21 August 2023. pg. 7

REF. FPSD-11441

37. At this point, the Single Judge recalled that on 18 August 2023, the Respondent paid two monthly salaries (May and June 2023) to the Claimant, leaving only the July 2023 salary outstanding. Regardless, the Single Judge pointed to the jurisprudence of the DRC, stipulating that the Respondent must comply with a full payment of the outstanding salaries, i.e. it is not sufficient to only make a partial payment.

38. Considering that the Claimant has duly granted the regulatory deadline through a default notice, yet the Respondent only made a payment of two out of three outstanding salaries and the claim remained uncontested by the Respondent, the Single Judge concluded that the Claimant had a just cause to unilaterally terminate the contract, based on art. 14bis of the Regulations. ii. Consequences

39. Having stated the above, the members of the Single Judge turned his attention to the question of the consequences of such unjustified breach of contract committed by the

Respondent.

40. The Single Judge observed that the outstanding remuneration at the time of termination, coupled with the specific requests for relief of the player, are equivalent to two salaries of July and August 2023 under the contract, amounting to EUR 7,362 (EUR 3,681 times 2).

41. Furthermore, the Single Judge noted that in July 2023, Respondent participated in the UEFA Europa Conference League and that, during the season 2022/2023, the Claimant appeared in more than 15 matches of the Club, triggering the payment of two bonuses of EUR 3,000 and EUR 5,000 as per Clause 2 of the Employment Agreement.

42. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Single Judge decided that the Respondent is liable to pay to the Claimant the amounts which were outstanding under the contract at the moment of the termination, i.e. EUR 15,362.

43. In addition, taking into consideration the Claimant’s request as well as the constant practice of the DRC in this regard, the latter decided to award the Claimant interest at the rate of 5% p.a. on the outstanding amounts as from the due dates until the date of effective payment.

44. Having stated the above, the Single Judge turned to the calculation of the amount of compensation payable to the player by the club in the case at stake. In doing so, the Single Judge firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including in particular, the remuneration and other benefits due to the player under the existing pg. 8

REF. FPSD-11441 contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period.

45. In application of the relevant provision, the Single Judge held that he first of all had to clarify as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. In this regard, the Single Judge established that no such compensation clause was included in the employment contract at the basis of the matter at stake.

46. As a consequence, the members of the Single Judge determined that the amount of compensation payable by the club to the player had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Single Judge recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable.

47. Bearing in mind the foregoing as well as the claim of the player, the Single Judge proceeded

with the calculation of the monies payable to the Player under the terms of the contract from the date of its unilateral termination until its end date. Consequently, he concluded that the amount of EUR 34,110.6 (i.e. September 2023 – 8 June 2024, 9 months (EUR 33,129) and 8 days (EUR 981.6)) serves as the basis for the determination of the amount of compensation for breach of contract.

48. In continuation, the Single Judge verified as to whether the Player had signed an employment contract with another club during the relevant period of time, by means of which he would have been enabled to reduce his loss of income. According to the constant practice of the DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new employment contract shall be taken into account in the calculation of the amount of compensation for breach of contract in connection with the Player’s general obligation to mitigate his damages.

49. Indeed, the Player found employment with Mosta F.C. In accordance with the pertinent employment contract, the player was entitled to approximately EUR 950 per month.

Therefore, the Single Judge concluded that the Player mitigated his damages in the total amount of EUR 8,423.33 (i.e. 13 September 2023 – 8 June 2024, 8 months (EUR 7,600) and 26 days (pro rata September and June, EUR 823.33)).

50. Subsequently, the Single Judge referred to art. 17 par. 1 lit. ii) of the Regulations, according to which a player is entitled to an amount corresponding to three monthly salaries as additional compensation should the termination of the employment contract at stake be due to overdue payables. In the case at hand, the Single Judge confirmed that the contract termination took place due to said reason i.e. overdue payables by the Club, and therefore decided that the Player shall receive additional compensation. pg. 9

REF. FPSD-11441

51. In this respect, the Single Judge decided to award the amount of additional compensation of EUR 11,043, i.e. three times the monthly remuneration of the Player.

52. The Single Judge reminded the Parties that, as per the last sentence of art. 17 par. 1 lit. ii) of the Regulations, the overall compensation may never exceed the rest value of the prematurely terminated contract.

53. Consequently, on account of all the above-mentioned considerations and the specificities of the case at hand, the Single Judge decided that the Club must pay the amount of EUR 34,110.6 to the Player (i.e. EUR 34,110.6 minus EUR 8,423.33 plus EUR 11,043, limited to a maximum of EUR 34,110.6), which was to be considered a reasonable and justified amount of compensation for breach of contract in the present matter.

54. Lastly, taking into consideration the Player’s request as well as the constant practice of the DRC in this regard, the latter decided to award the Player interest on said compensation at the rate of 5% p.a. as of 21 August 2023 until the date of effective payment. iii. Compliance with monetary decisions

55. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24 par. 1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

56. In this regard, the Single Judge highlighted that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid. The overall maximum duration of the registration ban shall be of up to three entire and

consecutive registration periods.

57. Therefore, bearing in mind the above, the Single Judge decided that the Respondent must pay the full amount due (including all applicable interest) to the Claimant within 45 days of notification of the decision, failing which, at the request of the Claimant, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become immediately effective on the Respondent in accordance with art. 24 par. 2, 4, and 7 of the Regulations.

58. The Respondent shall make full payment (including all applicable interest) to the bank account provided by the Claimant in the Bank Account Registration Form, which is attached to the present decision. pg. 10

REF. FPSD-11441

59. The Single Judge recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of the Regulations.

d. Costs

60. The Single Judge referred to art. 25 par. 1 of the Procedural Rules, according to which “Procedures are free of charge where at least one of the parties is a player, coach, football agent, or match agent”. Accordingly, he decided that no procedural costs were to be imposed on the parties.

61. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art. 25 par. 8 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

62. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for relief made by any of the parties. pg. 11

REF. FPSD-11441

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Kevin Tulimieri, is partially accepted.

2. The Respondent, Birkirkara FC, must pay to the Claimant the following amount(s):

• EUR 3,681 as outstanding remuneration plus 5% interest p.a. as from 1 August 2023 until the date of effective payment; - EUR 3,681 as outstanding remuneration plus 5% interest p.a. as from 21 August 2023 until the date of effective payment; - EUR 5,000 as outstanding amount plus 5% interest p.a. as from 21 August 2023 until the date of effective payment; - EUR 3,000 as outstanding amount plus 5% interest p.a. as from 21 August 2023 until the date of effective payment; - EUR 34,110.6 as compensation for breach of contract without just cause plus 5% interest p.a. as from 21 August 2023 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. Full payment (including all applicable interest) shall be made to the bank account indicated in the enclosed Bank Account Registration Form.

5. Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment

(including all applicable interest) is not made within 45 days of notification of this decision, the following consequences shall apply:

1. The Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid. The maximum duration of the ban shall be of up to three entire and consecutive registration periods.

2. The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee in the event that full payment (including all applicable interest) is still not made by the end of the three entire and consecutive registration periods.

6. The consequences shall only be enforced at the request of the Claimant in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.

7. This decision is rendered without costs.

For the Football Tribunal: Emilio García Silvero

Chief Legal & Compliance Officer

pg. 12

REF. FPSD-11441

NOTE RELATED TO THE APPEAL PROCEDURE: According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION: FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football

Tribunal).

CONTACT INFORMATION

Fédération Internationale de Football Association FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777 pg. 13